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Conservation Resources 



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THE 



United States Patent System 



BY 



JAMES SHEPARD. 



Read before the New Britain Scientific Association, 



DKCKNIBE^R 8, 1890. 



Reprinted from the April number of the NEW ENGLAND MAGAZINE. ^•2'^^^// ' 



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POTTER &. POTTER, PUBS. 

BOSTON. MASS. 
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Copyrighted by James Shepard, 1890. 



THE 



New England Magazine. 



New Series. 



APRIL, 1 89 1 



Vol. IV. No. 2. 



THE UNITED STATES PATENT SYSTEM. 



By James Shepard. 




VERY person has an 
obvious right to the 
products of his own 
mind, and conse- 
quently a right to his 
inventions. No one 
could know of the ex- 
istence of an inven- 
tion, until after the 
inventor voluntary revealed it, either by 
disclosing it to others or putting it into 
some tangible form. But in the absence 
of special laws, how can the inventor 
protect himself in this right? If he 
attempts to use his invention for himself 
only, he will in doing this disclose it to 
others ; and while others cannot stop 
him from using it, he has no power to 
stop them. Some few inventions may be 
practised in secret, but most inventions, 
if used at all, leave some tangible evidence, 
which, in spite of all the safeguards that 
may be devised, are liable sooner or later 
to be discovered or betrayed. Under 
such circumstances there would be poor 
encouragement to invent, and those who 
do invent must try to keep their inven- 
tions with profound secrecy. Some have 
succeeded in so doing and let valuable 
inventions die with' themselves. Without 
protection, those who conceive of inven- 
tions will not work them out, and thus 
the public is deprived of the advantages. 
Such was the state of affairs relating to 
inventions when this country was first 



settled, but even then men were keen 
enough to see that the public at large would 
be greatly benefited by taking steps to en- 
courage and stimulate inventions. In 
fact, nearly every nation in the world has 
given some encouragement and provided 
some protection fpr inventions. Even 
the North American Indians, it is said, 
honored the maker of arrow-heads ; they 
always gave him a hearty welcome and at 
all times gave him free passage through 
the country, as he carried his stone im- 
plements about for sale or exchange. 
With a view to encourage invention, many 
of our states in the colonial days, by 
special acts, from time to time, granted 
patents to various inventors. The late 
Senator .Wadleigh of New Hampshire is 
authority for the statement that it is gen- 
erally believed that- the first patent ever 
issued to an inventor in America was 
granted in 1646, by the General Court of 
the colony of Massachusetts Bay, to 
Joseph Jencks, for an improvement in 
scythes. The improvement changed the 
short, thick, straight English scythe into 
the longer, thinner, curved implement 
with stiffened back, substantially the same 
as that in use at the present day. 

In 1652, the General Court of Massa- 
chusetts allowed John Clark ten shillings 
for three years from every family who 
should use his invention for sawing wood 
and warming houses at little cost. After 
a trial for this period he was granted the 



\'^^* 
•.^ 



140 



THE UNITED STATES PATENT SYSTEM. 




United States Patent Office, Washington, D. C. 



same privilege during his life. This is 
the earliest record I have found of a 
royalty or license fee. 

In the printed statutes of Connecticut, 
in 1672: 

" It is ordered that there shall be no monopolies 
granted or allowed amongst us, but of such new 
inventions as shall be judged profitable to the 
country and for such time as the general court 
shall judge meet." 

The earliest Connecticut patent found 

on record was granted in October, 171 7, 

to Edward Hinman of Stratford, for the 

exclusive right and liberty of making 

molasses from the stalks of Indian corn, 

in Fairfield County, for ten years, which 

grant ended with the words : 

" Always provided the said Hinman make as 
good molasses, and make it as cheap, as comes 
from the West Indies." 

Like many of these colonial patents, 
this grant covered the practice of the art 
by any and all processes, without being 
restricted to the particular process prac- 
tised by the petitioner. 

Such patents were granted for the right 
to make steel, to make salt, to make 
glass, to utilize the tide for mills, and for 
the practice of many other arts. Iron 
and silk were the subjects of much legis- 
lation. An application for a patent for 
the exclusive use of the steam-engine for 
factory purposes was refused in 1786. 



Other patents were more limited ; for 
example, a patent to the inventor of a 
clock ^nhat winds itself up by the help 
of the air, and will continue to do so 
without aid or assistance until the com- 
ponent parts thereof are destroyed by 
friction," was limited to the privilege of 
making and vending said kinds of clocks. 
Instead of an exclusive right to make 
and sell, bounties or premiums were 
sometimes offered. Sometimes the peti- 
^tioner was allowed to raise money by 
lottery ; and in one instance an unfor- 
tunate inventor who had been convicted 
of altering bills of public credit was re- 
stored to his forfeited liberties for having 
invented " a method of grinding and pol- 
ishing crystals and other stones of great 
value, all of the growth of this colony." ^ 

The constitution of the United States 
gives Congress the power '' to promote 
the progress of science and useful arts, 
by securing for limited times to authors 
and inventors the exclusive right to their 
respective writings and discoveries." 
Our present system has its foundation in 
this single clause of the constitution. 
Says Senator Piatt in his speech upon the 
reorganization of the Patent Office : 



1 Those who may be interested in a further study of the 
Colonial patents of Connecticut will find some fifty pages 
relating thereto in the Patent Office Reports for the year 
1850, page 421. 



THE UNITED STATES PATENT SYSTEM. 



141 



" When the fathers wrote that clause of the 
constitution of the United States, they buildecl 
better than they knew. They knew, indeed, that 
the prosperity of every nation must depend largely 
upon the progress of the useful arts; they knew 
that if this country was to attain the glory and 
the power which they hoped for it, it must be 
along the road of invention; but they could not, 
the wildest dreamer, the statesman with the most 
vivid imagination, could never have dreamed, 
could never have imagined, the blessing, the bene- 
ficial results, which would flow and have flowed 
from the exercise of the power thus granted to 
Congress." 

Thomas Jefferson is said to have been 
the first to take steps to have Congress 
exercise the power thus granted, and at 
his instigation, and under his influence, 
the patent act of April lo, 1790, was 
passed, and the first American patent 
<?< twisystem was founded. The President, the 
Secretary of State, and the Attorney-Gen- 
eral were the persons to examine appli- 
ations under this act ; and they performed 
their duties with great care and rigidity, 
refusing many applications. The first 
patent granted under this act, the same 
being the first United States patent, was 
dated July i, 1790, and was issued to 
Samuel Hopkins of Vermont, for making 
pot and pearl ashes. 

On December 15, 1836, the building 
occupied by the Patent Office was burned, 
leaving no records of early patents in 
existence, other than a mere list. In the 
early reports, the full residence of the 
patentees was not given. Only three 
patents were issued during the entire 
year of 1790; thirty-three were issued 
in 1 79 1, eleven in 1792, and prior to 
/ February 24, 1793, twenty more, making 
Lm all sixty-seven patents issued under 
our first patent law. A new law was 
passed in 1793, which practically did 
away with all examination as to merits 
and novelty, and every one who paid the 
necessary fees received a patent. Under 
the act of 1790, the total of the gov- 
.'=' ernment fees on a patent containing a 
thousand words was only $4.70. Under 
the act of 1793, the fee was raised to 
$30.00 in all cases. 11,348 patents were 
granted under this act, some of which 
were the most important inventions of 
the age. The first United States patent 
ever issued to a citizen of Connecticut 
was granted January 15, 1796, to Jared 



Byington, for an improvement in making 
nails. Daniel Byington of Wolcott, was 
a noted mechanic and a skilled inventor. 
He had a son Jared, who, judging from 
the record of his baptism, was about . 
thirty years of age at the date of this 
patent. There is a strong probability 
that this Jared is the patentee in ques- 
tion and that he had removed from Wol- 
cott prior to that time. Where he re- 
sided I have been unable to learn. I 
cannot find that the manufacture of nails 
was carried on anywhere in Connecticut 
at that early day, except at the forge of 
the village blacksmith, and in the work- 
room at Newgate prison, where a large 
number of men were so employed. In 
May, 1776, an act for the encouragement 
of manufacturing nails, by paying a bounty 
per pound upon all made, passed one 
branch of the General Court of Con- 
necticut, but was killed in the upper 
house. As early as 1791, a United States 
patent was granted for a machine for 
making nails. 

The law of 1793 provided for an inter- 
ference trial, to determine which of two 
or more applicants was the first inventor ; 
the first interference under this act was in 
connection with " a machine to work in a 
current of water," and terminated by the 
granting of a patent to John Clark, 
December 31, 1793. The present sys'^^ 
tem of the examination of applications; 
for patents, and substantially the present.; 
law, was passed July 4, 1836. The\ 
present system of numbering patents | 
began with No. i, for the first patent' 
issued in July, 1836, after the reorganiza-! 
tion of the Patent Office under this act, 
and continuing consecutively to the 
present time (December 2, 1890), has 
reached 442,090. Adding this number 
to the 11,405 issued prior to 1836, we 
have 453,505 as the total number of 
United States patents ever issued. This 
does not include re-issues, designs, trade- 
marks, and labels, each of which have 
their own numbers. In 1836, the Com- 
missioner of Patents, a chief clerk, a 
machinist, and a messenger, constituted 
the entire force of the Patent Office ; in 
all, eight persons. The present force of 
the Patent Office aggregates 590 persons, 
and even this number of employees is in- 



142 



THE UNITED STATES PATENT SYSTEM. 



sufficient to discharge the work of the 
office promptly. 

In the last half of the year 1836, only 
ninety-seven- patents were granted. In 
, the first half of the year 1890, 10,713 
patents were issued, which is over in 
times as many as in the same time in 
1836. During the year ending July i, 
1890; 20,682 patents were issued, which 
is more by several hundreds than the en- 
tire issue of patents for a period of sixty- 
one years after the establishment of the 
Patent Office. ^ 

The question of most general interest 
under the present law is that of patent- 
ability. What is patentable? It is dif- 
ficult to give a definite answer to the 
question, or to give a rule, standard, or 
unerring test, by which one can always 
tell surely whether a certain device is 
patentable. Able lawyers, judges, and 
experts, who have spent a lifetime in 
studying patent law and patents, come to 
different conclusions as to the patentability 
of certain devices. There are cases where 
we can surely say a device is patentable 
if new, or that it is not patentable ; but 
other cases come so near the border line 
between that which is patentable and not 
patentable, that two persons of great skill 
and experience in patent matters may 
honestly entertain opposite opinions. It 
is no easy task to say what is patentable. 
Even the issue of a patent does not con- 
clusively prove that the subject matter 
patented is patentable. The only section 
of the law which relates to patentability 
is as follows : 

" Section 4886. Any person who has invented 
or discovered any ne.w and useful art, machine, 
manufacture or composition of matter, or any new 
and useful improvement thereof, not known or 
used by others in this country, and not patented 
or described in any printed publication in this or 
any foreign country, before his invention or dis- 
covery thereof, and not in public use or on sale 
for more than two years prior to his application, 
unless the same is proved to have been aban- 
doned, may, upon payment of the fees required 
by law and other due proceedings had, obtain a 
patent therefor." 

The reader might be referred to this 
section of the law for an answer to the 
question, for it is, in connection with the 

1 For a general history of the Patent Office from 1790 up 
to the date of the fire in September, 1877, the reader is re- 
ferred to the O. G. of October 9, 1877, Vol. 12, page 589. 



explanations thereof as given by the 
courts, all the answer that there is. Let 
attention be directed in detail to the 
language of this section. As to who may 
obtain a patent, the language is the 
broadest that can be framed. It is as 
broad as the "every one" in the Scrip- 
tural invitation to them that thirst. The 
conditions of the act being fulfilled, a 
patent may be obtained by " any per- 
son " without qualification ; male or female, 
old or young, black, white or red, citizen 
or alien, a resident of this or any country, 
— all these are included, and none are ex- 
cluded. If two or more persons jointly 
fulfil the conditions of this section, they 
are entitled to receive a joint patent, 
because each applicant comes under the 
term "■ any person who," with others, has 
fulfilled these conditions. 

The first requisite of patentability under 
this section. is that one shall have ''in- 
vented or discovered" something, then 
comes the question, What is it to invent 
or discover? Invention is making known 
that which was not known before ; at 
least, not known to the inventor. It must 
originate with him ; otherwise, it is not in- 
vention. He may have spent years of 
study and thought before he could so 
comprehend the matter as to make it 
known, or he may have discovered it by 
accident or in the twinkling of the eye. 
In either case it is invention or discovery. 
If a thing is actually discovered without 
thought or study, it might be said that 
the discoverer did not actually invent it ; 
but even then it is probable that if another 
person had desired to know^ and to make 
known, the same thing, he might have 
first studied over it for years ; and there- 
fore to make an unknown thing known is 
something that might have required the 
exercise of invention, and if so that thing 
has been invented or discovered within 
the meaning of this law. Invention and 
discovery are therefore considered syn- 
onymous. There may be a slight distinc- 
tion between them, but it is immaterial. 

The second requisite of patentability, 
is that the thing invented shall be " new 
and useful." A thing is new if not before 
known. It must at least be new with the 
inventor. "New and useful," when con- 
sidered by itself, imphes that it must be 



THE UNITED STATES PATENT SYSTEM. 



143 



new to all the world, but what the statute 
means by new is explained further on in 
connection with special requirements as 
to novelty, and therefore need not be 
considered here. A thing to be patent- 
able must be useful, in the sense that it is 
capable of a useful purpose. It may be 
no better than that which existed before ; 
if it is useful as opposed to harmful, the 
law is satisfied. Utihty has a bearing on 
the question of novelty and invention. 
A change, to be novel, must be a sub- 
stantial and material one, — a change that 
produces some useful result or function. 
If a material advantage is derived from a 
certain change, the presumption is that 
others would have made that change before 
and reaped that advantage, were it not 
for the fact that mvention was required to 
make the thing known, and therefore we 
call the thing new. This presumption of 
invention and novelty cannot arise from 
the production of a change by which no 
advantage can be reaped. 

The third requisite of patentability re- 
lates to the subject matter invented. 
The subject may be any ''art, machine, 
manufacture or composition of matter." 
The term art relates to the manner of 
doing certain acts, the process or mode 
by which anything is made. A process 
may be worked out by machinery, but the 
mere operation of a machine is not a true 
art, process, or method. A machine is a 
device for performing work of some kind, 
and it generally consists of moving parts. 
A "manufacture " is any finished article, 
or one so nearly finished as to be the 
subject of sale for some useful purpose. 
This term is confined to the article itself, 
with reference to some utility, and does 
not apply to the mere shape or ornamenta- 
tion of an article which has no useful 
function. Shape, without function, is a 
proper subject for a design patent, and is 
therefore excluded from protection under 
this section of the statute. A " composi- 
tion of matter " is a medical or chemical 
compound, or any compound of two or 
more ingredients. Anything to be patent- 
able must come under one or the other 
of these four heads or classes, — art, 
machine, manufacture, or composition of 
matter ; or else it must be some new 
and useful improvement thereof. The 



phrase ''improvement" in this connec- 
tion only serves to make it clear that one 
may receive a patent for all that he in- 
vents ; whether it be a thing of a kind 
never known before, a thing which is new 
from beginning to end, or merely a new 
and useful change of, or addition to, 
something which was before known. The 
subject matter of every patent now issued 
is called an " improvement " in the grant, 
but the words as thus used do not neces- 
sarily imply that the invention is an im- 
provement upon some prior invention of 
the same class. 

The fourth requisite of patentability is 
that the subject matter invented shall not, 
before the applicant's invention, have 
been " known or used by others in this 
country." This is the first special pro- 
vision as to novelty. Known and used, 
in this connection, are practically syn- 
onymous. Anything which is not com- 
pleted so as to be capable of use cannot 
fairly be said to be known. If it has not 
been tried or used, it may result only in 
failure. When, however, a thing has been 
used, and has been found to answer the 
purpose for which it was made, the thing 
is then known to all who have used it or 
seen it used, but it cannot be practically 
known until it has been used. It is im- 
material how small a number of persons 
may have the knowledge of prior use ; if 
known to only a single person other than 
the inventor, and if no special pains are 
taken to prevent others from knowing the 
same, it is known to the world in the eye 
of the law. This prior knowledge or use, 
in order to defeat *a patent, the statute 
says must be " in this country," and 
therefore it is immaterial what has been 
known and used abroad, provided the 
home inventor did not know of that 
foreign use and was thus a real inventor. 

The fifth requisite of patentability is 
that the subject matter invented shall not 
have been " patented or described in any 
printed publication in this or any foreign 
country, before his invention or discovery 
thereof." This is the second and last 
special provision as to novelty. It will 
be noticed that this requisite includes 
foreign countries, so that a prior patent or 
printed publication in any country is a 
bar to a patent. It is iK)t enough, how- 



144 



THE UNITED STATES PATENT SYSTEM. 



ever, that a thing may be shown in the 
drawing of a prior patent, or described in 
the specification, in order to be patented. 
It is patented only when it is either in 
whole or in' part the subject matter that is 
set forth in a patent as the invention of 
the patentee. If, however, such patent is 
printed, it becomes a printed publication, 
and then matter which is described 
therein is a bar to a patent. In order to 
defeat a patent or application by a prior 
printed publication, the subject matter of 
that patent must be described, not merely 
shown in such prior publication ; but such 
description may refer to a drawing, and 
if the two taken together show the sub- 
ject matter of a patent or application, the 
description will be considered sufficient 
to defeat it. There must, however, be a 
description of some kind in a printed 
publication, in order to make said pub- 
lication a bar to a patent. 

The sixth requisite of patentability is 
that the subject matter shall not have 
been in " public use or on sale for more 
than two years prior to this application." 
If a thing is used, as things of its class 
are ordinarily used, and without special 
concealment, it is in public use. A mere 
test of a thing is not public use ; but if, 
after such use as is necessary to test its 
working, the use is continued, it is public 
use. It is immaterial how limited the 
use may be, or how small a portion of the 
public may actually know of such use. 
A thing is on sale when it is offered for 
sale, no matter whether it is actually sold 
or not.» We have already referred to 
prior use, but the limit in that case was 
only that such use must not be before the 
applicant's invention, and had no refer- 
ence to the application, or to any use 
that was subsequent to the invention. 
An applicant may have invented a device 
ten or twenty years prior to his applica- 
tion, so far as prior use is concerned ; 
but if the applicant or any one else, 
either with or without the applicant's 
knowledge or consent, uses a device for 
more than two years before application 
for a patent, a valid patent cannot be 
obtained therefor. A use prior to the 
applicant's invention is expressly limited 
to this country, and therefore the two 
years' public use and sale, which may be 



subsequent to the invention, is also un- 
derstood to relate only to this country. 

The seventh requisite of patentabihty 
is that the invention is not " proved to 
have been abandoned." Abandonment 
can be proved only by the declarations 
or acts of the inventor, and the proof 
must be clear. A man can give his m- 
vention away if he pleases, but unless he 
expressly declares, either by words or 
acts, that he has given it up, or that he 
never intends to do anything more with 
it, or words to that effect, it is a hard 
matter to prove abandonment. 

Lastly, this section provides for the 
payment of fees and other matters of 
form, which can be easily complied with 
and need not be here discussed. 

We have now considered the whole 
law of patentability ; and if the reader 
do not understand it he need not be 
discouraged. Probably, language cannot 
be framed to affirmatively state what may 
be patentable. Volumes have been writ- 
ten on the subject, but they are largely 
devoted to telling what is not patentable 
instead of what is. In fact, the law it- 
self, as we have already seen, is largely 
made up of negative conditions. In 
giving rules even to what is not patent- 
able, the matter is further complicated 
by certain exceptions to those rules. 
One great difficulty in regard to this 
question is want of uniformity in the 
matter to be considered. Unless nearly 
the exact thing is found to be old, every 
case is practically a new one and differ- 
ent in some respects from any other, and 
to judge it correctly and properly apply 
to it the rules of law, requires the nicest 
discrimination and the most careful judg- 
ment. 

In order to obtain a patent, the appli- 
cant must make application therefor in 
writing to the Commissioner of Patents. 
This writing is called the petition. He 
must also file a written description. This 
description is called the specification. 
It must be so full and clear as to enable 
one skilled in the art or science to which 
it appertains to make, construct, com- 
pound and use the same. The reason 
for this requirement is twofold : first, 
to know how to construe the patent in 
case of alleged infringement ; and second, 



THE UNITED STATES FA TEXT SYSTEM. 



\U 



that the pubHc may have the benefit of 
the invention after the patent has expired. 
In fact, a patent is a contract between 
the inventor and the government, the 
latter giving the inventor, for a Hmited 
time, the exclusive right to make, to use, 
and to sell his invention, upon the condi- 
tion that the inventor gives that same 
right to the public at the expiration of 
his patent. In order to make sure that 
the public shall have this right, the law 
requires this full and complete disclosure 
of the invention by a written specifica- 
tion, before the patent can be issued. 
The law also requires that the specifica- 
tion shall particularly point out and dis- 
tinctly claim the part, improvement, or 
combination which the applicant claims 
as his invention. The clause or clauses 
which thus point out the invention are 
called the claims. 

When the nature of the case admits of 
illustration by drawings, the applicant is 
required to furnish one drawing on card- 
board, ten by fifteen inches in size, while 
the Patent Office furnishes a copy thereof 
to be attached to the patent. The draw- 
ings are copied by the photolithographic 
process, and they must, therefore, be 
made in exact accordance with a long 
list of requirements. In fact, no one but 
an experienced artist can make a drawing 
that comes up to the high standard now 
required by the Office. 

The applicant is also required to make 
oath or affirmation as to his residence, 
what country he is a citizen of; that he 
verily believes himself to be the original, 
first, and sole inventor of the matter 
claimed in the specification, or if there be 
more than one applicant, that they are 
joint inventors ; that it has not been 
patented to his knowledge in any country, 
or in no country except those named m 
the oath ; that it has not been in public 
use or on sale in the United States for 
more than two years prior- to his applica- 
tion ; and that he does not know, and 
does not believe, that it was ever known 
or used prior to his invention. 

The applicant shall also furnish a model, 
"if required by the Commissioner," but 
the Commissioner requires models only in 
very few instances. This dispensing with 
models has been a great saving to in- 



ventors, because they can have their 
applications prepared from full-sized ma- 
chines or articles. It has also worked 
much injury to inventors, as they have had 
applications prepared from rough sketches 
before making any machine or article, 
and oftentimes when they had only crude 
ideas of what they had invented. The 
result has been many worthless patents. 
Oftentimes when the patentee comes to 
embody the invention in a machine or 
article, he finds, to his sorrow, that he 
has so changed the construction that 
another patent must be taken out to cover 
the improved device. Sometimes the 
change is so great that not a single feature 
remains that is covered by the patent. 
And worse than all, sometimes the change 
is not quite so sweeping and the com- 
pleted thing partially resembles the 
patent, but not closely enough to be 
clearlv within the claims thereof ; while, at 
the same time, the patent discloses just 
enough to prevent getting adequate pro- 
tection by a new patent. Such a patent 
is positively worse than no patent at all, 
but it is no more than what may be ex- 
pected in trying to patent a thing which 
never existed except on paper. 

The application being prepared, when 
it is sent to Washington, the financial clerk 
will see that the first Government fee 
of fifteen dollars is paid, and the applica- 
tion clerk will see that all the formalities 
as to signatures and the oath have been 
complied with. The draughtsman will 
examine the drawing, to see if it is made 
in conformity with the rules, and if so, he 
will stamp it " O. K." A receipt is then 
forwarded to the applicant, stating that 
the papers have been duly filed and 
that " your application for a patent will 
be taken up for examination in its order." 
The last three words are very significant, 
and mean that the case will be reached 
for examination perhaps inside of a month, 
perhaps, in five or six months, according to 
which one of the six hundred and eighty- 
eight classes, or the four thousand and 
over sub-classes, the invention may belong 
to. The examination of these applica- 
tions is divided among thirty principal 
examiners, stationed in as many different 
rooms ; the principal examiner being 
chief of the room and responsible for the 



146 



THE UNITED STATES PATENT SYSTEM. 



work of his assistants. They consist of a 
first, second, third, and fourth assistant 
examiner and several clerks. 

The first step in the examination of an 
appUcation is to determine whether it is 
in all respects in proper form, and if so, 
the case will be examined on its merits. 
In matters of form, some examiners are 
very exacting and almost whimsical ; while 
others^ pay but little attention to form, and 
turn their whole attention to matters of 
substance. As a general rule, those who 
are not too exacting in matters of form 
are the best examiners. In examining a 
case upon its merits, the drawings of all 
prior patents in the class to which the 
invention belongs, and oftentimes the 
patents in other classes, when there is a 
probability that there may be any analogy, 
are examined. Not only prior United 
States patents, but the prior patents of 
all countries, and also the printed publi- 
cations in the Office Library are ex- 
amined. While the examinations are 
largely made by the aid of drawings, the 
accompanying descriptions are read 
whenever there is any obscurity in the 
drawing, or when there is a probability 
that said description may reveal some- 
thing not illustrated by the drawing. By 
practice and experience, the examiners 
become very expert in reading drawings, 
and can detect almost at a glance any- 
thing that has an analogy to the case which 
they are considering. These examinations 
are generally very thorough, and it is 
extremely seldom that a prior patent or 
publication is overlooked. Such cases do 
sometimes occur, but not so often as we 
might expect, when we consider the diffi- 
cult task of making such an examination 
in the limited time at the command of 
the examiners. The result of the exami- 
nation is communicated to the applicant 
or his attorney, and in the great majority 
of cases consists of a rejection or partial 
rejection of the application, with the 
reason therefor and such information and 
references as may be useful to the applicant 
in the further prosecution of his case. 
The applicant then has a right to another 
examination without change in his appli- 
cation, or he may change the same in 
such manner as to remove the objections. 
The examination is made with more par- 



ticular reference to what the applicant 
claims than it is to what he shows. Thus 
the examiner may oftentimes reject an 
application upon reference to a patent, 
the substance of which the examiner con- 
siders to be entirely different from the 
applicant's invention, because the exam- 
iner considers the claim to be so worded 
that it may be said to describe the device 
shown in the prior patent as well as it 
does the applicant's invention. An ob- 
jection by reason of such a reference is 
overcome by changing the wording of the 
applicant's claim, so that it particularly 
points out those features that are different 
from those shown in the patent cited. 
Oftentimes the change of one or two 
words in a claim will cause the examiner 
to allow it, when he otherwise would not. 
In fact, the science of soliciting patents 
consists largely in perceiving how little 
change may be sufficient to overcome an 
objection. Great skill is required to so 
word a claim that it shall clearly identify 
the invention and, separate it from all 
prior ones, and at the same time make 
the claim as broad as the invention. ' One 
of the most common errors of patent 
solicitors and inventors, in amending a 
claim to avoid an objection, is to impose 
on the claim more limitations and restric- 
tions than are necessary to overcome the 
objection. 

This is a good place, perhaps, to cor- 
rect a common error. Many suppose 
that the grant of a patent is proof that 
the subject matter does not infringe upon 
any prior patent, or, in other words, that 
obtaining a patent gives one a right to 
manufacture the patented article without 
being accountable to any prior patent. 
This is not the case. The office makes 
jio examination whatever for the purpose 
of ascertaining whether the device which 
an applicant shows and describes in- 
fringes on any other patent or not. In fact, 
this is none of its business. In making 
the examination, the examiners do not 
even read the claim of a prior patent, 
unless it is for the purpose of a better 
understanding of what is shown and 
described in said patent. The only claim 
which concerns the Patent Office is the 
claim of the applicant, and the examina- 
tion is made to see if the applicant 



THE UNITED STATES PATENT SYSTEM. 



147 



claims matter which is made the subject 
of any prior patent, or which is described 
in any printed publication. If an appli- 
cant claims such matter, his claim must 
be rejected, because it is thereby barred 
from a patent under the clause relating 
to patentability, which I have before 
considered. I have already alluded to 
the difficulty ot deciding the question 
of patentability, and this is a matter 
which the examiner has to decide. He 
must consider it in all its bearings, not 
only with reference to novelty, but, sup- 
posing some novelty is shown, he must 
then decide whether that novelty is such 
as results from invention, or whether it is 
merely the expected skill of a mechanic. 
One of the most difficult questions in 
deciding patentability is that of distin- 
guishing between mechanical skill and 
invention. A thing which is better than 
another and is also new only by reason 
of mechanical skill is not patentable, 
because that which results from mechan- 
ical skill alone is neither invention nor 
discovery. 

In 1836, Senator Ruggles, as chairman 
of the Committee on Patents, gave his 
view of the qualifications of a good 
examiner as follows : 

" It is his business to make himself fully ac- 
quainted with the principles of the invention for 
which a patent is sought, and to make a thorough 
investigation of all that has been before known 
or invented, either in Europe or America, on the; 
particular subject presented for his examination] 
He must ascertain how far the invention inter- 
feres in any of its parts with previous inventions 
or things previously in use. He must point out 
and describe the extent of such collision and in- 
terference, that the applicant may have the bene- 
fit of the information in so shaping or restricting 
his claim of originality as not to trespass upon 
the rights of others. . . . An efficient and just 
discharge of the duties, it is obvious, requires 
extensive scientific attainments, and a general 
knowledge of the arts, manufactures, and the 
mechanism used in every branch of business in 
which improvements are sought to be patented, 
and of the principles embraced in the ten thou- 
sand inventions patented in the United States, and 
of the thirty thousand patented in Europe. He 
must moreover possess a familiar knowledge of 
the statute and common law on the subject, and 
the judicial decisions both in England and our 
own country, in patent cases." 

The same qualifications of an exam- 
iner are required to-day ; but instead of 
having to examine only ten thousand in- 



ventions patented in the United States, 
he has to examine nearly four hundred 
and fifty thousand such patents, and also 
a very much larger number of foreign 
patents than he did in 1836. Commis- 
sioner Foote said, in 1868 : 

" Questions as to the patentability of inventions 
become more difficult with the increase in the 
number of previous devices. An examiner must 
familiarize himself with all the inventions that 
have been made in his class, not only in this 
country, but in Europe. Their great number and 
complexity have rendered the study of them a 
profession to be acquired by years of labor. An 
examiner's decision involves nice questions of 
law, of science, and of mechanics, The more 
recondite principles upon which depend the 
practical success of processes and machinery must 
be familiar to him. Large amounts of property 
often depend directly or indirectly upon his ac- 
tion. The ability and acquirements necessary to 
the proper discharge of his duties must be of a 
high order, scarcely less than those we expect in 
a judge of the higher courts of law." 

And yet before 1848 a primary or 
principal examiner was paid a salary of 
^2500 a year, and from that time to the 
present his salary has been $2400. The 
salaries of the assistants is much less. 
If we ever feel disposed to find fault with 
the work of these examiners, we should 
bear in mind that their pay is out of all 
proportion to the work required of them, 
and that more work -is forced upon them 
than they can attend to promptly and 
efficiently. Notwithstanding all the diffi- 
culties under which an examiner labors, 
I may say that the inventors fail to re- 
ceive ample protection in their patents 
through the fault of their solicitors at 
least nine times as often as they do 
through the fault of the examiner. If 
the solicitor, in the first place, does not 
draw a claim so as to properly protect the 
invention, the examiner has no power to 
correct the mistake ; no matter how 
many unnecessary restrictions are in the 
claim, or how many other claims might 
properly have been made, the examiner 
can only reject or allow the claims which 
are presented to him. On the other 
hand, if the examiner attempts to impose 
unnecessary restrictions, or rejects the 
case improperly, the solicitor has every 
opportunity to reply and to correct the 
error of the examiner. If he does not 
do so, the fault is the solicitor's, rathei 
than solely the examiner's. There being 



THE UNITED STATES PATENT SYSTEM. 



thirty principal examiners, and conse- 
quently thirty different chiefs of the 
examining corps, we have as many differ- 
ent rulings. This is necessarily the case, 
for on questions of nice distinction the 
honest judgment of different men will 
differ. In 187 1, Commissioner Leggett 
said : 

" It is very difficult to establish any rule as to 
references that shall be plain and of universal 
application; consequently, there are almost as 
many different rules of practice in finding refer- 
ences and making rejections as there are different 
examiners in the office. Some examiners are very 
quick to detect resemblances, and will reject 
almost everything. Others are equally quick at 
finding differences, and will grant patents on mere 
shades of variation. Hence, a picket-fence is re- 
jected on reference to a comb; . . . surgical in- 
struments for injecting spray into the throat or 
nasal organs, on reference to a fireman's hose; a 
rubber packing for fruit-jars, on reference to a 
pump; a device for lacing ladies' shoes without 
the use of holes or eyelets, on reference to an old 
mode of cording bedsteads; an ore-crusher, on 
reference to a nut-cracker. In each of these 
cases there will be found a remote resemblance 
between the device in the application and the 
reference. In some of them, however, the ex- 
aminers have displayed more inventive genius in 
finding the references than the applicants would 
dare claim for their devices." 

In many cases the examiners' letters 
read as if the 'examiner were acting under 
a law for the discouragement of useful in- 
ventions. The facts of a case are often- 
times misstated, or couched in unusual 
language, in order to bring the applicant's 
device more closely into analogy with the 
objections. In fact, the examiner's posi- 
tion is oftentimes so earnestly contested 
by the attorneys, that unless the examiner 
is very careful he will find himself acting 
merely as an opponent to an application, 
apparently forgetting that he is sitting as 
a judge to see that justice is done, both 
to the public and to the inventor. It 
may be given as a general rule that where 
an examiner's letter shows the exercise of 
much thought, study, and invention, in 
order to throw an obstacle in the way of 
granting an application, that the subject 
matter of that application is patentable. 
The applicant is entitled to two rejections 
of each claim upon the same state of 
facts, but oftentimes new references are 
given, and these entitle the applicant to 
another action, and in this way sometimes 
a dozen or more letters are written by the 



examiner before the case is disposed of. 
The applicant can reply to these letters at 
any time within two years, and in this 
way he may, if he elects, keep his ap- 
plication in the office for many years. 

The greatest hardship that poor in- 
ventors suffer, under the unjust action of 
the examiner, is when a case is wrongfully 
rejected and they cannot well bear the 
expense of an appeal. Upon the pay- 
ment of a government fee of ten dollars 
(and when a solicitor is employed, con- 
siderably more than that, for conducting 
the case), the applicant has a right of an 
appeal to the examiners-in-c"hief. This 
board of appeal consists of three ex- 
aminers, whose only business is the con- 
sideration of appealed cases. A popular 
error is in styling them the examiner-in- 
chief, or the chief- examiner, as if the 
board consisted of only one person instead 
of three. The same mistake is often 
miade concerning the title of primary ex- 
aminer ; he is called the principal ex- 
aminer of the Patent Office, as if he were 
one above all others, instead of being 
one of an equal grade with thirty prin- 
cipal examiners. 

Upon an adverse action of the ex- 
aminers-in-chief, the applicant has a right 
to appeal to the commissioner in person, 
and from his decision an appeal is had to 
the Supreme Court of the District of 
Columbia. 

The practice in design patents is sub- 
stantially the same • as in mechanical 
patents ; it differs therefrom mainly in 
the subject matter to which the patents 
relate. A design patent is confined to 
ornamentation or such matters as appeal 
solely to the eye, while machines and all 
matters relating to function or mode of 
operation are expressly excluded under 
the statute. 

The extension of patents is a thing of 
the past. An extension gives life to a 
patent for a new term of years. Prior ,to 
March, 1861, the term of all patents was 
fourteen years. The law was then changed, 
making the life of a patent seventeen 
years, with a provision that no patent 
issued after that date should ever be ex- 
tended, and no patent issued since then 
has ever been extended. 

A reissue of a patent is often con- 



THE UNITED STATES PATENT SYSTEM. 



149 



founded with an extension. A reissue 
has no effect whatever on the term of a 
patent. It expires at the end of seven- 
teen years from the date of the original 
patent. A reissue only changes the de- 
scription and claims of the original 
patent. The drawing may be considered 
as a part of this description. In making 
these changes the applicant is 'confined to 
.the subject matter which constituted the 
invention in the original patent. A re- 
issue for the purpose of narrowing the 
claim, or for omitting one of the claims, 
is proper at any time, but under the re- 
cent rulings of the courts a reissue for the 
purpose of broadening the claim or claims 
must be made very soon after the issue of 
the original patent, if at all ; otherwise, 
the reissue will be void. In view of these 
recent decisions it is of the utmost im- 
portance that the original patent should 
be taken out with great care. We have 
already considered the importance of 
having the invention reduced by a ma- 
chine or model to a tangible form before 
the making of an application. In a.ddi- 
tion to this, it is of great importance that 
the inventor shall disclose to his solicitor 
all facts that he can relative to his inven- 
tion. He should as nearly as possible tell 
him exactly how much of the device he 
knows to be old, and what he supposes 
to be new. He should point out with 
minuteness all the advantages which are 
derived from his invention, or which are 
supposed to be derived therefrom, and in 
doing so he should carefully distinguish 
between the advantages which are peculiar 
to his invention and those which it has in 
common with prior devices. He should 
also inform the solicitor of the various 
modifications or changes in the invention 
which have occurred to him or which he 
can devise. Having done this, it is the 
duty of the solicitor to put the case into 
proper form, and upon him lies the respon- 
sibility of a good patent. If the applicant 
fails to give the solicitor such information 
as he possesses, an imperfect patent will 
be largely the fault of the inventor. The 
writer has known many patents to be 
more or less faulty simply through the 
neglect of the inventor to tell the sohcitor 
of the real facts in the case, and facts that 
he well knew. 



Trade-marks and labels are registered 
in the Patent Office under certain condi- 
tions, but they are not patents, and for 
that reason will not be discussed in this 
paper. 

The amount of the balance in the 
Treasury of the United States to the 
credit of the patent fund, in January, 
1890, was nearly four million dollars. 
The Patent Office is the only branch of 
the Government from which any profit is 
derived, the only branch that pays its 
own way ; and yet Congress has always 
pursued a niggardly policy towards this 
most useful, important, and prosperous of 
its children. For more than forty years 
past the annual reports of the Patent 
Office have contained urgent appeals to 
Congress for more room, more help, and 
more money, yet inventors in some 
classes have often had to wait for from 
twelve to fifteen months, or more, before 
their applications could be reached for 
examination. In the report for the year 
1847 one of the examiners says: 

"The genius, energy, and patient perseverance 
of the inventor in the noble work of improve- 
ment, in those arts which minister to the neces- 
sities, the conveniences, and the enjoyments of 
man, have far outstripped the tardy foot of legisla- 
tion, and have transcended the limits of legisla- 
tive provisions for their protection." 

In 1884, Hon. O. H. Piatt, one of the 
warmest, the truest, and most earnest 
friends of the American mechanic and in- 
ventor, said in his speech in the United 
States Senate, after quoting from the re- 
ports of several Commissioners : 

" The quotations which I have made from 
former Commissioners and the letter of the present 
Commissioner are but the echo of every Commis- 
sioner of Patents, from the commencement of the 
Office down to the present time. The universal 
cry has been for more room, for more force, for 
room and force to enable the Office to keep up 
with its constantly increasing business. It has 
been more than a cry, it has been a wail. The 
Office is shamefully and almost criminally limited 
and cramped for room. I undertake to say that 
if there were tenement-houses in the city of 
Washington crowded as the rooms in the Patent 
Office are crowded, there would be one universal 
cry of indignation going up, not only from the 
press of this city, but the press of the whole 
country. Yet in the Patent Office it goes on and 
nobody objects. The space which is allotted to 
the clerical employees of the Patent Office may be 
large enough for a (kmgeon, it may be large 
enough for a tomb, and it may be a little too 



150 



THE UNITED STATES PATENT SYSTEM. 



large for a grave, but it is not a fit amount of 
room for a human being to live and do the work 
of this Government in." 

Yet, notwithstanding all this cry for 
more room and more force, the Office is 
still in the same condition, and the report 
of the present Commissioner echoes the 
plea of every former Commissioner for 
more force, and for more funds, in order 
that tiie inventors of this country may 
have granted to them such facilities in 
the Patent Office as those inventors have 
paid for and do not get. One of the 
most important inventions in connection 
with the workings of the Patent Office is 
that of photohthography. It is, I believe, 
pot the result of a single invention, but 
like many other inventions which are of 
the greatest moment to the country, it 
came little by little as the aggregate re- 
sult of many inventions. By its aid the 
Patent Office is enabled to do with the 
same force nearly double the work that 
could formerly have been done. In fact, 
as we look upon it to-day, it would seem 
almost impossible for the Office to con- 
duct its business at all without the aid of 
photolithography. For example, look at 
the Official Gazette, which is sent out 
every Tuesday,/ and contains illustrations 
and the full claims of every patent issued 
on that Tuesday, for the current week, 
the number of which frequently exceeds 
five hundred. This requires over one 
hundred and fifty pages. When consid- 
ered with reference to the amount and 
character of the labor bestowed upon it, 
and the promptness with which it is 
issued, I believe that it is not equalled by 
any other publication in the world, and 
yet it is sold at five dollars a year. One 
can obtain a single copy for any week for 
ten cents. What a contrast is this to 
twenty-five years ago. h.t that time the 
only printed record of patents that was 
sent from the Patent Office was the much 
ridiculed Patent Office Reports issued only 
once a year, and then not until the 
patents which they illustrated were two 
or three years old. The illustrations were 
engravings or woodcuts, closely crowded 
together in a volume or volumes by them- 
selves, while the claims were printed in 
other volumes. The first illustrations 
appear in the report for 1853, in which a 



part only of the patents were illustrated 
by white lines on a black ground, the cuts 
accompanying the text. The reports for 
1849, '5®> '51? ^i^d '52 contained the 
claims only, and prior to that time we 
have nothing but a mere list of patents 
issued, with reports of the various exam- 
iners, who sometimes made mention of 
what they considered the most important 
inventions of the patents issued during 
the year. 

Photolithography has wrought numerous 
other changes *in the practice of the 
Patent Office. Formerly, the examiners 
had to make their examinations from a 
single set of the original drawings, and if 
more than one examiner wished at the 
same time to consult the drawings of any 
particular class, one of them would have 
to defer his work until the other was 
"through with them. Now, every examiner 
has in his own room a photolithographic 
copy of all such patented drawings as he 
may often have occasion to examine. 
Other sets are kept in the draughtsman's 
room, where attorneys and others may 
have access to them. The original draw- 
ings are carefully filed away where they 
can be examined when necessary, but 
where they will be preserved from being 
worn out and destroyed by constant wear 
and use such as they were formerly sub- 
jected to. Then in the matter of copies, 
— the specifications are printed of all 
patents issued since 1866, and all of the 
drawings have been photolithographedj 
so that in less than three days' time one 
can obtain any copy of these patents for 
the sum of ten cents. In 1866, the only 
way to obtain a copy of a patent in the 
Office was to have the drawing traced by 
hand and a manuscript copy made of the 
specification. It would take from one to 
six weeks to obtain one of these copies, 
and the expense was considerable. A 
dollar and a half was about the smallest 
cost for a copy of any patent, while 
copies requiring more drawing and longer 
specifications greatly exceeded thi-s cost. 
The writer has paid thirty-eight dollars 
for a copy of a patent which now can be 
obtained for ten cents. Notwithstanding 
this low price for these copies, the Patent 
Office derives a substantial profit from its 
sales. Twenty-five years ago the dsaw- 



THE UNITED STATES PATENT SYSTEM. 



151 



ings for an application were made on a 
sheet of paper fifteen by twenty inches 
square. Instead of being all line work 
and jet black, brush shading, and all the 
colors of the rainbow were permissible. 
It was a common practice to show 
different materials in different colors ; for 
instance, the steel was colored blue, 
brass, and wood were represented yellow, 
and if certain parts were shown in more 
than one position in one figure of a draw- 
ing, one of these positions was repre- 
sented in red. Instead of requiring 
only one drawing, as at present, the ap- 
plicant was required to furnish a copy of 
his drawing on tracing muslin, the latter 
to be attached to his patent when issued. 
The specification, instead of being printed, 
was in manuscript, on paper of the same 
size as the drawing, namely, — fifteen by 
twenty inches, making quite a cumber- 
some document, which was very incon- 
venient to carry or examine. Commis- 
sioner Theaker commenced printing the 
specifications November 20, 1866, and at 
the same time reduced the size of patents 
and drawings from fifteen by twenty to 
ten by fifteen. The copy of the drawing 
in tracing muslin to be attached to the 
patent was still required. In June, 1869, 
the Patent Office, under Commissioner 
Fisher, commenced photolithographing 
drawings of all patents, after which the 
applicant was not required to furnish a 
copy of his drawing other than the 
original, the copy for attachment to the 
patent being furnished by the Office with- 
out expense to the applicant. This 
change necessitated the abolishing of 
all colors, except black from the original 
drawings ; but the inventor's name and 
the title of the invention the applicant 
placed upon the head of each sheet of his 
drawings, and all the fancy work both in 
color and design that the draughtsman 
could conceive of was lavishly bestowed 
upon this lettering. In the month of 
May, 187 1, the Office still further re- 
duced the size of patents, and the drawing 
attached thereto, from ten by fifteen inches 
to eight by eleven and one half inches. 
This size has been continued until the 
present time. The original drawings are 
still made on a sheet ten by fifteen inches 
in size, which are reduced by photolitho- 



graphy to the size of the present patent. 
About the time of thus reducing the size 
of the patent, the applicant was debarred 
the privilege of putting the fancy letter- 
ing upon his drawing and compelled to 
leave it blank, so that the Office might 
fill in the title and inventor's name with 
a uniform style of type. Another im- 
portant improvement resulting from 
photolithographing is the furnishing of 
complete copies of the drawings and 
specifications to public libraries, so that 
inventors all over the United States can 
have ready access to them. 

In January, 1869, Commissioner Foote 
commenced publishing a weekly list of 
claims, which was furnished to subscri- 
bers at the rate of $5 per annum. Soon 
after. Commissioner Fisher added to this 
list a pamphlet containing Commission- 
ers' decisions which was issued at inter- 
vals of from one to two months. These 
were furnished without further expense to 
all subscribers for the weekly list of 
claims. These claims were stereotyped, 
so that at the close of the year they 
could be printed in the annual report, 
but they were not illustrated. Commis- 
sioner Fisher advised the discontinuance 
of the publication of the annual report ; 
and the joint resolution of Congress, 
dated January 11, 187 1, abolished the 
old form of annual reports. At that time 
the reports for 1869 had not been pub- 
lished, and the appropriations for the 
same expired July i, 1869. It was soon 
found that the abolishment of these re- 
ports was a mistake, and as a substitute 
therefor Commissioner Leggett com- 
menced the publication of the present 
Official Gazette, containing illustrations 
of all the patents each week, and they 
have been published continually since 
that time. The Gazette is such a great 
improvement over the old annual reports 
that we are glad those were abolished, for 
if they had not been abolished, under a 
mistaken idea and by an under estimate 
of their value, we never should have had 
the present Official Gazette. 

The Patent Office was never before in 
so good a condition as it is to-day, and 
all this has come not from being a favored 
child of the government and the reci- 
pient of lavish support, but it has come 



LIBRARY OF CONGRESS 



152 



SC/CCESS. 



in spite of neglect and abuse. The office 
can spend from its own earnings only so 
much as Congress may be pleased to give 
it, and in fact it has not even been cred- 
ited with all* of its own earnings. The 
Patent Commissioner formerly had charge 
of the Department of Agriculture, and 
the entire expenses of that department 
were paid by the Patent Office for a 
period of twenty-five years. Says Sen- 
ator Piatt : 

" The Agricultural Department is the daughter 
of the Patent Office; but we have taken the 
daughter away from her mother; we have built 
her a fine house and furnished elegant surround- 
ings; we have given her costly and fashionable 
clothing; we pet, I will not say pamper her; we 
pay her every possible attention, while the old 
lady, her foster mother, still scrubs along in the 
kitchen of the Interior Department, and' is never 
noticed except when she deposits the surplus of 
her daily earnings in the Treasury for the benefit 
of the rest of the family. It is a shame, and the 
inventors are beginning to regard it as a shame, 
and they are going to be heard in their demand 
that the Patent Office shall receive better treat- 
ment than it has received." 

That demand has been made by every 
commissioner, for more than fifty years. 
At the same time, every effort has been 
made to make the m.ost of the facilities 
at hand, until' the Patent Office has been 



019 974 499 

brought into as good a condition as pos- 
sible so long as it cannot use its own 
money without the permission of Con- 
gress. Formerly, inventors had to wait 
from twelve to fifteen months, and in 
some classes even eighteen months, be- 
fore their applications were reached for 
examination. Now there is not a room 
in the Patent Office that is six months 
behind in its work. This condition has 
not been brought about by reason of a 
decrease in the number of applications 
or in the number of patents issued, nor 
by having more help, more room, or 
more money ; it was done in spite of a 
great increase in the number of applica- 
tions, and with the same help, the same 
room, and the same amount of money as 
heretofore. In i888, 20,420 patents 
were issued. In 1889, there were 24,158 , 
an increase of almost one-fifth. The 
weekly issue of patents in 1888 was a little 
less than four hundred. It is now more 
than five hundred almost every week. 

While our patent system is not what it 
would be with better facilities, we may 
point w^th pride to the fact that even in 
its crippled condition we have the best 
and most perfect patent system of any 
country in the w^orld. 



♦ ■»».♦ 



JAMES SHEPARD, 



84 West Main Street, 



New Britain, Conn, 



SOLICITOR OK 



Patents, and Expert in Patent Causes. 



LV_i- 



Conservfltinn ResmimMc 



■iiiiini'' 

019 974 499 9 



